Acquisition and processing of personal data (Principles 1 and 2)

4.2.1 According to Principle 2, personal data should only be collected for one or more specified lawful purposes and further processing should be compatible with those purposes. As a general rule, processing for the purposes of archival preservation can be considered a compatible further use of the data and the special purpose set out at 2.3.7 will apply. 4.2.2 Processing for the purposes of archival preservation is undertaken by reference to the “research exemptions” set out in section 33 of the Act (outlined in Annex B, B4). Personal data may be stored indefinitely as archives for research purposes provided that the “relevant conditions” are observed, namely:

• The data is not processed to support measures or decisions relating to particular individuals, and • The data is not processed in such a way that substantial damage or substantial distress is, or

is likely to be, caused to any data subject The meaning of “substantial damage and distress” is discussed further at 4.9

4.2.3 When personal data categories (a)-(d) are being processed in accordance with these conditions, there is also an exemption from Principle 5 but the other Principles must be observed unless the personal data is “eligible data” (see Annex A), in which case further exemptions apply (see Annex B). The data may be disclosed to third parties for research purposes in accordance with section 33 or to the data subject without the exemption from Principle 5 being lost. (See also 4.9.) Category (e) personal data is exempted from Principles 1–3, 5, 7 and 8. (See Annex A for an explanation of the different categories of personal data.)

4.2.4 All archives repositories acquiring personal data falling into categories (a) to (d) and wishing to undertake further processing must be able to show that there is a “fair” and “lawful” basis for doing so, in accordance with Principle 1 (See 2.2.5–2.2.6). This means looking at the conditions in Schedule 2 and, for sensitive personal data, Schedule 3.

4.2.5 For schedule 2, archivists dealing with public records will be exercising statutory functions under the Public Records Act and so can refer to paragraph 5(b), which relates to processing for the ‘exercise of functions … conferred by

an enactment’. Archivists dealing with other public sector records can refer to paragraph 3, which relates to processing ‘in compliance with any legal obligation’ (other than a contract), paragraph 5(c) which relates to processing for ‘the exercise of any functions of … a government department’ or paragraph 5(d) which relates to processing for ‘functions of a public nature exercised in the public interest’. Archivists in the private sector can refer to paragraph 5(d) also, particularly if the organisation admits visitors seeking to undertake research. Another possibility for private sector archivists is paragraph 6(1), which relates to processing that is necessary ‘for the purposes of the legitimate interests of the data controller’ or by third parties to whom the data is disclosed, except where processing would be unwarranted because of ‘prejudice to the rights and freedoms or legitimate interests of the data subjects’.

4.2.6 One of the conditions in Schedule 3 must also be identified for sensitive personal data. Archivists processing sensitive personal data who are unable to comply with any of the conditions specified in Schedule 3 may benefit from SI 2000 No. 417 Data Protection (Processing of Sensitive Personal Data) Order 2000. This sets out additional circumstances in which sensitive personal data may be processed and thereby provides supplementary Schedule 3 conditions. Paragraph 9 of the Order makes lawful any processing which, in addition to satisfying the general requirements that sensitive data are processed lawfully and fairly: “(a) is in the substantial public interest; (b) is necessary for “research purposes” (which expression shall have the same meaning as in section 33 of the Act); (c) does not support measures or decisions with respect to any particular data subject otherwise than with the explicit consent of that data subject; and (d) does not cause, nor is likely to cause, substantial damage or distress to the data subject or any other person.” 4.2.7 Except when they themselves collect data for the purposes of administering their offices, archivists will generally not be expected to inform data subjects of processing they undertake for research purposes because to do so would involve disproportionate effort. The unfairness of not so informing data subjects is minimal where the relevant conditions are observed and records either kept closed for an appropriate period or used only for research which will be anonymised.

4.3 Appraisal (Principle 5)

4.3.1 Archivists involved in the appraisal of records prior to their transfer should ensure that personal data worthy of permanent preservation is identified as soon after creation as possible and scheduled for retention accordingly (Principle 5).

4.3.2 There is a danger that over-cautious interpretation of the Act may lead to the weeding, anonymising or destruction of files containing personal data that would otherwise be passed to the archives repository. An archivist’s ability within the Act permanently to retain personal and sensitive personal data for the purposes of research (see 4.2.1) should therefore be made clear to potential depositors. The legislation contains the necessary safeguards for depositors. 4.3.3 When considering the permanent preservation of sensitive personal data for the purposes of research, archivists should give serious consideration to how far this will be in “the substantial public interest”. This will mean weighing up whether society as a whole, and the research community in particular, will benefit from preservation of the data for research purposes. All appraisal decisions should be documented as a matter of good professional practice.

4.4 Accessioning

4.4.1 All newly received archives, whether manual or electronic, should be checked to ascertain whether they include personal data covered by the Act, for example a database or a series of case files about named living individuals. Bodies that are not subject to the FOI Acts will find that some manual archives fall outside the Act because they are neither accessible records (category (d) personal data) nor records from a relevant filing system (category (c) personal data). 4.4.2 Bodies subject to the FOI Act should assume that all archives containing personal data about identifiable living individuals are subject to the Act. Archivists in public authorities should note that category (e) personal data in archive collections of private origin may fall within the Act by virtue of being held by a body subject to the UK FOI Act. The position is different for bodies subject to the Scottish FOI Act; personal data of private origin will fall within the scope of the Act only if ownership has passed to the archive repository or its parent body.

4.4.3 When arranging the transfer of archives, archivists should ascertain from the donor or depositor whether they contain data already covered by a notification, whether the data is already exempt from subject access and whether measures have been taken to confirm its accuracy. Transfer documentation should incorporate questions that confirm these points (see examples at Annex C). 4 Assessment of private archive collections to determine whether they fall under the FOI Act is the subject of guidance issued by The National Archives in 2005 – see http://www.nationalarchives. gov.uk/documents/guidance_private_archives.pdf

4.4.4 Transfer and deposit agreements should clarify the responsibilities of the archivist, stating whether the originating person or body is retaining or transferring data controller responsibilities as outlined at 4.1.3. It may be necessary to obtain legal advice to ensure that the wording of these agreements is accurate.

4.4.5 As a general rule, it is simpler to accept only those sets of personal data that are no longer required for current business and hence can be retained for the sole purpose of archival preservation. This is because it will be clear that they are a contemporary not up to date record. However, this may not always be practicable and continued use may prove necessary (see 4.11 for further guidance on this). Notification should accommodate expected use of the data. It should also be clear to someone consulting the data whether the records are still in active use and have been kept up- to-date, or instead reflect a historical position.